Citation Nr: 9821668
Decision Date: 07/16/98 Archive Date: 07/23/98
DOCKET NO. 96-19 770 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased rating, greater than 10
percent, for bilateral varicose veins, prior to January 12,
1998.
2. Entitlement to an increased rating, greater than 10
percent, for varicose veins of the right lower extremity, as
of January 12, 1998.
3. Entitlement to an increased (compensable) rating for
varicose veins of the left lower extremity, as of January 12,
1998.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
H. Roberts, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1980 to July
1983.
This appeal arises before the Board of Veterans’ Appeals
(Board) from a February 1994 rating decision of the St.
Petersburg, Florida, Regional Office (RO) of the Department
of Veterans Affairs (VA), which denied a rating greater than
10 percent for bilateral varicose veins.
In a November 1997 remand which requested an examination of
the veteran’s disability. The veteran failed to report to
the requested examination. However, during the pendency of
the appeal, and subsequent to the remand, the criteria for
evaluation of the veteran’s disability were amended.
Pursuant to the new criteria, effective January 12, 1998, the
RO assigned a 10 percent disability rating for the veteran’s
varicose veins of the right lower extremity, and a
noncompensable disability rating for the veteran’s varicose
veins of the left lower extremity.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that a rating greater than 10 percent
was warranted for his bilateral varicose veins, prior to
January 12, 1998. The veteran further contends that his
varicose veins of the right lower extremity and varicose
veins of the left lower extremity are more severe than
currently evaluated, and warrant increased ratings as of
January 12, 1998.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteran’s claims of entitlement to an
increased rating, greater than 10 percent, for bilateral
varicose veins, prior to January 12, 1998; entitlement to an
increased rating, greater than 10 percent, for varicose veins
of the right lower extremity, as of January 12, 1998; and
entitlement to an increased (compensable) rating for varicose
veins of the left lower extremity, as of January 12, 1998.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran’s claims has been developed.
2. The medical evidence of record does not show that the
veteran has involvement of his varicose veins both above and
below the knee, nor does the evidence show severe
varicosities below the knee, with ulceration, scarring, or
discoloration, below the knee.
3. The medical evidence of record does not show persistent
edema, incompletely relieved by elevation of the extremity,
with or without beginning stasis pigmentation or eczema,
resulting from the veteran’s varicose veins of the right
lower extremity.
4. The medical evidence of record does not show any
complaints or symptoms attributable to the veteran’s varicose
veins of the left lower extremity.
CONCLUSIONS OF LAW
1. The criteria for entitlement to an increased rating,
greater than 10 percent, for bilateral varicose veins, prior
to January 12, 1998, are not met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. Part 4, § 4.104, Diagnostic Code 7120
(1996).
2. The criteria for entitlement to an increased rating,
greater than 10 percent, for varicose veins of the right
lower extremity, as of January 12, 1998, are not met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4,
§ 4.104, Diagnostic Code 7120 (1997).
3. The criteria for entitlement to an increased
(compensable) rating for varicose veins of the left lower
extremity, as of January 12, 1998, are not met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.104,
Diagnostic Code 7120 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board finds that the veteran’s claims are
“well grounded” within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991); that is, he has presented claims that are
plausible. He has not alleged that there are any records of
probative value that may be obtained which have not already
been associated with his claims folder. The Board
accordingly finds that the duty to assist the veteran, as
mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been
satisfied.
The veteran established service connection for varicose
veins, status post right vein stripping, by means of a
January 1984 rating decision, which assigned a 10 percent
disability rating. That rating was continued by a February
1994 rating decision, which is the subject of this appeal.
During the pendency of the appeal, a January 1998 rating
decision assigned a 10 percent rating, pursuant to amended
criteria, for varicose veins of the right lower extremity,
status post stripping, and a noncompensable rating for
varicose veins of the left lower extremity. However, as that
decision did not represent a total grant of benefits sought
on appeal, this appeal remains before the Board.
The severity of a disability is ascertained, for VA rating
purposes, by application of the criteria set forth in VA’s
Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1996)
(Schedule). The criteria for the evaluation of varicose
veins are found in Diagnostic Code 7120 of the Schedule.
38 C.F.R. § 4.104 (1996). Under the criteria in effect at
the time of the veteran’s claim, a 10 percent rating was
warranted where the evidence showed bilateral or unilateral
moderate varicose veins; with varicosities of superficial
veins below the knees, with symptoms of pain or cramping on
exertion. A 20 percent rating was warranted where the
evidence showed unilateral moderately severe varicose veins;
involving superficial veins above and below the knee, with
varicosities of the long saphenous, ranging in size from one
centimeter to two centimeters in diameter, with symptoms of
pain or cramping on exertion; with no involvement of the deep
circulation. Where those symptoms were bilateral, a 30
percent rating was warranted. 38 C.F.R. § 4.104 (1996). The
criteria also provided that severe varicosities below the
knee, with ulceration, scarring, or discoloration, and
painful symptoms would be rated as moderately severe.
38 C.F.R. § 4.104, Diagnostic Code 7120, Note (1996).
Terms such as “mild,” “moderate,” and “severe” are not
defined in the Schedule. Rather than applying a mechanical
formula, the Board must evaluate all of the evidence to the
end that its decisions are “equitable and just.” 38 C.F.R.
§ 4.6 (1997). It should also be noted that use of
terminology such as “mild,” “moderate,” or “severe” by
VA examiners and others, although an element of evidence to
be considered by the Board, is not dispositive of an issue.
All evidence must be evaluated in arriving at a decision
regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1997).
The criteria for the evaluation of varicose veins were
amended, effective January 12, 1998. See 62 Fed. Reg. 65,219
(Dec. 11, 1997). The amended criteria provide evaluations
for involvement of a single extremity, and that where more
than one extremity is involved, each extremity will be
evaluated separately and the ratings combined using the
bilateral factor, if applicable. 38 C.F.R. § 4.104 (1997).
Those criteria provide a noncompensable rating where the
evidence shows asymptomatic palpable or visible varicose
veins. The criteria provide a rating of 10 percent where the
evidence shows intermittent edema of the extremity or aching
and fatigue in the leg after prolonged standing or walking,
with symptoms relieved by elevation of the extremity or
compression hosiery. The criteria also provide a 20 percent
rating where the evidence shows persistent edema,
incompletely relieved by elevation of the extremity, with or
without beginning stasis pigmentation or eczema. 38 C.F.R.
§ 4.104 (1997).
A May 4, 1990, VA medical report shows that the veteran
complained of a lump on his calf of the right lower leg that
morning, which was not there the previous evening. The
examiner noted that the veteran had his right leg veins
stripped twice in June 1982. He was having pain in the leg.
The extremity was slightly tender with small swelling of the
right popliteal area. An August 1993 VA medical report shows
that the veteran complained of painful varicose veins in the
right leg and foot for three to four months prior, but
increasing in severity. The pain was sharp when he sat down
and the right leg would fall asleep. The veteran complained
of “pain” and “knots” in the right leg. The physician
noted that the veteran had not been in support hose since
1983, and was not taking any medication. The veteran worked
removing asbestos. The right lower extremity had healed
surgical scars on the surface of the foot with some local
tenderness. Dorsalis pedis pulse was present. Varicosities
were palpated in the posterior calf area just below the knee.
The physician stated that area was “not really tender.”
The physician provided an assessment of varicose veins of the
right lower extremity with a history of surgery, and
prescribed Motrin and support hose.
A January 1994 VA diseases of the arteries and veins
(cardiovascular) examination listed a medical history of
severe varicose veins in the right lower extremity, status
post surgical stripping. The veteran stated that the
varicosities had returned and were worse than ever. The
veteran claimed that he was in constant pain in the dorsum of
the foot, posterior leg, and Achilles tendon region that
“feels like a headache.” He stated that the discomfort
became progressively worse with prolonged standing and
prevented him from being able to walk fast. The objective
examination found three well-healed surgical incisional scars
in the dorsum of the right foot consistent with previous
venous stripping. There were extensive dilated varicosities
on the dorsum of the right foot, with very noticeable
deformity of the foot dorsum. There was a single very large
venous dilation (approximately one centimeter in diameter) on
the posterior distal leg. Blood pressure was 128/74 and
pulse was 79. Dorsalis pedis and posterior tibial pulses
were 2+/4+. Skin appearance examination showed no cyanosis
or stasis ulceration. Skin temperature was normal.
Examination for paresthesias was normal. Examination for
cardiac involvement was negative. The examiner diagnosed
severe varicosities of the right foot dorsum and posterior
distal leg on the right, status post venous stripping, with
recurrence of severe varicosities.
The November 1997 Board remand requested that the RO schedule
the veteran for an additional examination in order to acquire
further medical evidence. The evidence shows that the
veteran failed to report to an examination scheduled January
12, 1998. The Board notes that when a claimant fails to
report for an examination scheduled in connection with a
claim for increase, the claim shall be denied. 38 C.F.R.
§ 3.655 (1997).
I. Entitlement to an increased rating, greater than 10
percent, for bilateral varicose veins, prior to January 12,
1998.
The veteran contends that a rating greater than 10 percent
was warranted for his bilateral varicose veins, prior to
January 12, 1998. After a review of the record, the Board
finds that the veteran’s contentions are not supported by the
evidence, and his claim is denied.
The Board finds that the criteria for an increased rating,
greater than 10 percent, prior to January 12, 1998, were not
met. The evidence shows that the veteran’s symptomatic
varicosities were limited to involvement below the knee on
the right leg. In order to warrant an increased rating, the
evidence would need to show varicosities above and below the
knee, with varicosities of the long saphenous veins, ranging
from one centimeter to two centimeters in diameter. While
the veteran does claim cramping, and while the VA examiner
has stated that the varicosities are severe, the evidence
does not show the above the knee involvement required for a
rating greater than 10 percent. Furthermore, the evidence
does not show ulceration, scarring, or discoloration of below
the knee varicosities, which combined with painful symptoms
would warrant an increased rating. The examination did find
well-healed surgical scars, but not scars directly resulting
from the veteran’s varicose veins.
Accordingly, the Board finds that the criteria for
entitlement to an increased rating, greater than 10 percent,
for bilateral varicose veins, prior to January 12, 1998, are
not met, and the veteran’s claim therefor is denied.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4,
§ 4.104, Diagnostic Code 7120 (1996).
II. Entitlement to increased ratings for varicose veins of
the right lower extremity and varicose veins of the left
lower extremity, as of January 12, 1998.
The veteran further contends that his varicose veins of the
right lower extremity and varicose veins of the left lower
extremity are more severe than currently evaluated, and
warrant increased ratings as of January 12, 1998. After a
review of the record, the Board finds that the veteran’s
contentions are not supported by the evidence, and his claims
are denied.
A. Varicose veins of the right lower extremity.
The Board finds that the criteria for a rating greater than
10 percent for the veteran’s varicose veins of the right
lower extremity, as of January 12, 1993, are not met. In
order to warrant an increased rating, the evidence would need
to show persistent edema, incompletely relieved by elevation
of the extremity, with or without beginning stasis
pigmentation or eczema. The evidence does not show stasis
pigmentation. There is some evidence of edema, however, the
evidence does not show the edema is incompletely relieved by
elevation of the extremity.
Accordingly, the Board finds that the criteria for
entitlement to an increased rating, greater than 10 percent,
for varicose veins of the right lower extremity, as of
January 12, 1998, are not met. The veteran’s claim is
therefore denied. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. Part 4, § 4.104, Diagnostic Code 7120 (1997).
B. Varicose veins of the left lower extremity.
The Board finds that the criteria for a compensable rating
for the veteran’s varicose veins of the left lower extremity,
as of January 12, 1998, are not met. The evidence does not
show the veteran’s left lower extremity is symptomatic, and
there is no evidence of complaints of record regarding the
veteran’s left lower extremity. In order to warrant an
increased rating, the evidence would need to show
intermittent edema of the extremity or aching and fatigue in
the leg after prolonged standing or walking, with symptoms
relieved by elevation of the extremity or compression
hosiery.
Accordingly, the Board finds that the criteria for
entitlement to an increased (compensable) rating for varicose
veins of the left lower extremity, as of January 12, 1998,
are not met. The veteran’s claim is therefore denied.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4,
§ 4.104, Diagnostic Code 7120 (1997).
ORDER
Entitlement to an increased rating, greater than 10 percent,
for bilateral varicose veins, prior to January 12, 1998, is
denied. Entitlement to an increased rating, greater than 10
percent, for varicose veins of the right lower extremity, as
of January 12, 1998, is denied. Entitlement to an increased
(compensable) rating for varicose veins of the left lower
extremity, as of January 12, 1998, is denied. This appeal is
denied in its entirety.
(CONTINUED ON NEXT PAGE)
M. W. GREENSTREET
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -